Wilbur E. Cagle v. Mike Underwood Builders Inc. and Mike Underwood

This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. section 5-6-225(e)(3) for hearing and reporting of findings of fact and conclusions of law. In this appeal, the employer, Underwood, contends the evidence preponderates against the trial court's findings that (1) the employee's injury was one arising out of and in the course of employment, (2) the employer had actual notice of the injury, and (3) the employee retains a forty percent permanent partial disability to the right leg from a torn meniscus. The panel has concluded the judgment should be affirmed. The employee or claimant, Cagle, is forty-eight years old and has a ninth grade education. He has worked primarily in construction and as a machine operator in a factory. His duties with Underwood include performing repairs on new houses during the first year after they are sold, but not home maintenance. His normal working hours are from 8:3 a.m. until 4:3 p.m., but he often works later. He is paid a salary rather than wages. On September 29, 1993, Underwood left the work site at 4: p.m., instructing the claimant to "lock up" when he left. The claimant went to one of the houses to check mortar joints and, as he was about to leave, Suzanne Chandler, who had purchased one of the employer's houses in April of the same year, asked to borrow some WD-4. Although it was after normal hours, the claimant offered to spray Ms. Chandler's squeaky door. While doing so, Cagle slipped and fell, injuring his knee. He had to call his wife to come and drive him home. Two months earlier, the claimant had slipped and slightly injured his knee while performing a repair at the Chandler home, but the injury was so slight that he did not lose time or require medical attention. He did not report that occurrence. The record is clear that the employer had actual knowledge of the accident which is the basis of this workers' compensation claim. The treating physician, an orthopedic surgeon, diagnosed a complex bucket handle tear of the lateral meniscus and probable exacerbation of pre-existing arthritic disease, caused by the occurrence of September 29th. 2